As clearly and conclusively supported by the legal memorandums set forth below, the Washington State Court of Appeals and Washington Supreme Court lacked competent jurisdiction over the claims and issues presented in the direct appeal statement on additional grounds and/or initial collateral attack, for failure to provide Petitioner’s direct appeal right to appointment of effective assistance of counsel to litigate the non-frivolous issues presented in Statement of Additional Grounds, and for purpose of conducting Petitioner’s initial collateral attack, see below pages (2) through (9), entitled “STATE CREATED ENHANCED AND CONSTITUTIONALLY PROTECTED RIGHT TO APPOINTMENT OF COUNSEL FOR STATEMENT OF ADDITIONAL GROUNDS AND STATE INITIAL COLLATERAL ATTACK.”

Petitioner has not made any knowing and intelligent waiver of any claims or issues presented, and prejudice is inherent because on direct appeal the State must prove a constitutional error harmless beyond a reasonable doubt and on collateral attack, in Washington, the Petitioners must show actual prejudice; which is as matter of law, actual prejudice in and of itself see Page (10); however, harmless error analysis is not applicable to the jurisdictional and structural issues herein presented, see pages (11-12), cf. State v. Wicker, 105 Wn.App. 428, 20 P.3d 1007 (2001) (“In Roe v. Flores-Ortega, 528 U.S.470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) the Supreme Court reasoned, ‘the complete denial of counsel during a critical stage of a judicial proceeding…mandates a presumption of prejudice because the adversary process itself has been rendered preemptively unreliable.’”); Curtis v. U.S., 511 U.S. 486, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.2d 1461 (1938) (Denial of counsel deprives court of competent jurisdiction to proceed)”); State v. Milton, 160 Wn.2d 656, 252 P.3d 380 (2011) (Lack of appointed counsel at restitution hearing warranted vacation of restitution orders and remand for a new restitution hearing with counsel); Burget v. State of Texas, 398 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) (Denial of counsel renders conviction void for lack of jurisdiction to proceed).


It is well established law that States such as Washington State are not required b our Federal Constitution to “create appellate review in criminal cases,” as explained by the Supreme Court of the United States, Smith v. Robbins, 520 U.S. 259, 120 S.Ct. 746,. 145 L.Ed.2d 756 (2000):

The Constitution does not require States to create appellate review in criminal cases.

Martinez v. Court of Appeals of California, 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000):

The States also did not generally recognize an appeal as of right until Washington became the first to constitutionalize the right explicitly in 1889.

Washington State has chosen to have probably the most expansive right to counsel than any other State in the United States, and has defined said right as substantive rather than procedural, see State v. Sweet, 90 Wn.2d 282, 681 P.2d 579 (1978):

Under the Federal Constitution, as respondent notes, it is permissible to grant the right to appeal on whatever terms the State deems proper, McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed.2d 867 (1894)…Washington Const. Art. I, sec. 22 (Amend 20) grants not mere privilege, but a right to appeal in all cases.

City of Richland v. Kiehl, 87 Wn.App. 418, 942 P.2d 988 (1997):

RCW 10.73.150 expands the right of an indigent criminal defendant to appointed counsel beyond the constitutional requirement of a first appeal.

Harper v. Virginia Dist. Of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993):

States may provide more, but not less, rights, and relief beyond demands of federal due process.

Lafler v. Cooper, _U.S. _, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012):

It is, of course, true that defendants have “no right to be offered a plea…nor a federal right that the judge accept it.” Frye, ante, at 1388-1389, 132 S.Ct. 1399. In the circumstances here, that is beside the point. If no pleas offer is made, or a plea deal is accepted by the defendant but rejected by the judge, the issue raised here simply does not arise. Mush the same reasoning guides cases that find criminal defendants have a right to effective assistance of counsel in direct appeals even though the Constitution does not require States to provide a system of appellate review at all. See Evitts, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821; see also Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). As in those cases, “when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution.” Evitts, supra, at 401, 105 S.Ct. 830.

Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985):

The due process clause of the Fourteenth Amendment of the United States Constitution guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right”)

Daniels v. Willaims, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986):

The Fourteenth Amendment confers both substantive and procedural rights…the words “by the law of the land” from the Magna Carta were “intended to secure the individual from arbitrary exercise of powers of government.”

Washington State’s expanded right to counsel is a substantive right under the State Constitution which employs due process and equal protection guarantees under the United States Constitution, City of Richland v. Kiel, 87 Wn.App. 418, 942 P.2d 988 (1997):

RCW 10.73.150 is not a ‘procedural statute.’ The statute considers a substantive right to counsel beyond that required by our Constitution. Mills, 85 Wn.App. At 290, and that is uniquely legislative prerogative. See Grove, 127 Wn.2d at 236.

CrR 3.1 (b).

(2) A lawyer shall be provided at every stage of the proceedings, including sentencing, appeal, and post-conviction review.

RCW 10.101.005. Legislative Finding.

The legislative finds that effective legal representation must be provided for indigent persons consistent with the constitutional requirements of fairness, equal protection, and due process in all cases where the right to counsel attaches.           

RCW 10.73.150. Right to Counsel.

Counsel shall be provided at state expense to an adult offender convicted of a crime…when the offender is indigent…

(1) Files an appeal as matter of right;

(4) Is not under a sentence of death and requests counsel to prosecute a collateral attack after the chief judge has determined that the issues raised by the petition are not frivolous, in accordance with the procedure contained in rules of appellate procedure 16.11

RAP Rule 16.11. Personal Restraint Petition – Consideration of Petition.

(2) Determination by appellate Court. The chief Judge determines at the initial consideration of the petition the steps necessary to properly decide on the merits the issues raised by the petition. If the Issues presented are frivolous, the Chief Judge will dismiss the petition. If the petition is not frivolous and ca be determined solely on the record, the Chief Judge will refer the petition to a panel of judges for determination on the merits. If the petition cannot be determined solely on the record, the Chief Judge will transfer the petition to a superior court for a determination on the merits of for a reference hearing. The Chief Judge may enter other orders necessary to obtain a prompt determination of the petition on the merits.

Washington State’s expanded right to counsel encompasses, inter alia, the right to appointment of counsel for non-frivolous Statement on Additional Grounds, initial collateral attack on a criminal conviction such as habeas corpus or personal restraint petition, and Petition for Review and Petition for Discretionary Review from denial of a non-frivolous personal restraint petition, State v. Winston, 105 Wn.App. 318, 19 P.3d 495 (2001):

To have a full picture of the various situations in which a right to counsel exists, however, it is important to know that the Washington Legislature has extended the right to counsel beyond the constitutional requirements in certain circumstances. In a non-capital case, a defendant who initiates a collateral attack upon his judgment and sentence by filing a personal restraint petition may have a statutory right to counsel if certain conditions are satisfied. RCW 10.73.150(4). The Chief Judge of the Court of Appeals first screens a personal restraint petition to determine if it is time barred by any of the limitations in RCW CH. 10.73, and then reviews the issues raised in the petition to determine if they have any merit. Only if the Chief Judge determines that the issues raised are not frivolous will counsel be appointed. RCW 10.73.150(4).

In re Pers. Restraint of Atwood, 136 Wash.App. 23, 146 P.3d 1232 (2006):

The Chief Judge of this Court determined that the issue raised by Mr. Atwood was not frivolous. And he appointed counsel to represent Mr. Atwood on the issue, pursuant to RCW 10.73.150(4)

In re Welfare of J,M,, 130 Wash.App. 912, 125 P.3d 245 (2005):

It is well settled in Washington that the right to counsel attaches to indigent parents in termination proceedings b way of RCW 13.34.090(2). The right derives from the due process guarantees of Article I, section 3 of the Washington Constitution as well as the Fourteenth Amendment…By statute also– not just in criminal proceedings but in every case in which the right to counsel attaches—legal representation means effective representation, by definition. Former RCW 10.101.005 (1989) …The legislature finds that effective legal representation should be provided for indigent persons…consistent with constitutional requirements of fairness, equal protection, and due process in all cases when the right to counsel attaches.

Dependency of Grove, 127 Wn.2d 221, 897 P.2d 1252 (1995):

If there is a statutory right to counsel at all stages of the proceedings, then, under the policy expressed in RCW 10.101.005, that right includes a right to counsel on appeal and for the purpose of filing a motion for discretionary review. This right to counsel further contemplates a right to public funding of expenses necessarily incident to effective appellate review…The rights guaranteed by the equal protection clause of the Fourteenth Amendment and this State’s privileges and immunities clause, Const. Art. 1, sec, 12, are substantially identical.

Any denial of right to appointment of counsel as enhanced by the State of Washington, guaranteed and protected under the United States Constitution, constitutes a jurisdictional defect, Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955):

The effective assistance of counsel in such a case is a constitutional requirement of due process which no member of the Union may disregard.

Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000):

Denial of assistance of counsel altogether, either actually of constructively, is presumably prejudicial.

Lackawanna County Dist. Att. v. Coss, 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001):

Failure to appoint counsel for an indigent is a unique constitutional defect rising to the level of a jurisdictional defect.

When a State appellant/petitioner challenging a State criminal conviction has been deprived of State enhanced right to appointment of counsel, a federal habeas corpus court is authorized to hear a State criminal Defendant’s claims of ineffective assistance of trial and appellate counsel, with only the requirement that petition shows that the grounds, claims and issues presented have some merit, which is functionally an Anders v. California no issues with arguable merit determination, see Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012):

Allowing a federal habeas court to hear a claim of ineffective assistance of trial counsel when an attorney’s  errors (or the absence of an attorney) causes a procedural default in an initial review causes a procedural default in an initial review collateral proceeding acknowledges, as an equitable matter, that the initial review collateral proceeding, if undertaken without counsel or with ineffective counsel, may not have been sufficient to ensure that proper consideration was given to a substantial claim… To overcome the default, a prisoner must also demonstrate that the underlying ineffective assistance of trial counsel claim is a substantial one which is to say that the prisoner must demonstrate that the claim has some merits. Cf. Miller-El V. Cockrell, 537 U.S. 322 (2003) (describing standards for certificates of appealability to issue).

Ha Van Nguyen v. Curry, 736 P.3d 1287 (9th Cir. 2013):

We therefore conclude that the Martinez standard for “cause” applies to all Sixth Amendment ineffective assistance claims, both trial and appellate, that have been procedurally defaulted by ineffective counsel in the initial review State court collateral proceeding.

Petitioner asserts that he has given the Washington State Courts a “fair opportunity” to address and correct each Ground, claim and issue encompassed in the underlying initial collateral attack personal restraint petition, therefore AEDPA exhaustion requirements have been satisfied, see O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999):

State prisoner is not required only to exhaust his state remedies before filing a petition for federal habeas relief, rather, he must properly exhaust those remedies by fairly presenting his claims to the state courts. 28 U.S.C.A. § 2254 (b).

When a State appellate court chooses to not address federal constitutional claims such as ineffective and/or constructive denial of counsel claims, such issues and claims are considered exhausted, see Dye v. Hofbauer, 546 U.S. 1, 126 S.Ct. 5, 163 L.Ed.2d 1 (2005):

Failure of a state appellate court to mention a federal claim does not mean the claim was not presented to it. It is too obvious to merit extended discussion that whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely raised in petitioners brief in the state court.

If the State Courts determine the grounds, claims and/or issue lack arguable merit in fact and law, such as a Statement of Additional Grounds filed by a pro se appellate on State direct appeal as of right, then such frivolous determination places before the federal habeas corpus court, the initial no merit question for Anders determination, see Smith v. Robbins, 520 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Cf., State v. Nichols, 136 Wash.2d 859, 968 P.2d 411 (1998):

The defendant must be given a copy of the brief and an opportunity to raise any additional issues he wishes. “The court not counsel then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.” Id. See State v. Hairston, 133 Wash.2d at 540-41, 946 P.2d 397. In its first decision in this case, the Court of Appeals examined only those portions of the record pertinent to the potential issues identified by counsel in the Anders brief. In its second review on remand, the Court of Appeals discovered one nonfrivolous issue, the trial court’s failure to specify the period of community placement. See State v. Broadaway, 133 Wash.2d 118, 135, 942 P.2d 363 (1997). Having identified that issue, the court should not have proceeded with the case as an Anders appeal. If an appellate court “concludes that there are nonfrivolous issues to be raised, it must appoint counsel to pursue the appeal and direct that counsel to prepare an advocate’s brief before deciding the merits.” McCoy v. Court of Appeals, 486 U.S. 429, 444, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988); accord Penson v. Ohio, 488 U.S. 75, 83, 109 S>Ct. 346, 102 L.Ed.2d 300 (1988); Anders v. Claifornia, 386 U.S. at 744, 87 S.Ct. 1396, It is not sufficient that the court granted relief on the one issue it found to be meritorious. To the contrary, the court “committed and even more serious error when it failed to appoint new counsel after finding that the record supported…modification of his sentence. As a result, petitioner was left without constitutionally adequate representation on appeal.” Penson v. Ohio, 488 U.S. at 81, 109 S.Ct. 346.

In this case the Washington Court of Appeals did not properly address the issues encompassed in the Statement of Additional Grounds by first determining if said issues raised in a Statement of Additional Grounds had no basis in fact nor law, but instead proceeded to make decisions on the merits without appointing counsel, which is a structural and jurisdictional defect in the constitution of the Washington State appellate process.

In addition, the issues petitioner raised on initial collateral attack are issues that appellate counsel neglected to raise on direct appeal as of right, and/or could not raise on direct appeal as of right because the factual predicate was outside of the record, but in either case, Petitioner is constructively exercising direct appeal rights with statutory and constitutional right to appointment of counsel, a federal constitutionally protected right pursuant to, and in compliance with, Washington States expanded right to appointment of effective assistance of counsel as matter of law, cf., Lafler v.Cooper, _U.S. _, 132 S.Ct. 1276, 182 L.Ed.2d 398 (2012).


State v. Easterling, 157 Wash.2d 167, 137 P.3d 825 (2006):

A criminal defendant’s failure to lodge contemperaneous objection to an order closing courtroom proceeding to the public does not waive the right to challenge the constitutional validity of the order on appeal.

In re Pers. Restraint of Morris, 176 Wn.2d 157, 288 P.3d 1140 (2012):

Holding that the Petitioner is entitled to relief on collateral review on his claim that appellate counsel rendered ineffective assistance by failing to argue the public trial claim because (1) prejudice would have been presumed and (2) the petitioner would have been granted relief on direct review, the court grants the petition, vacates the petitioner’s convictions, and remand the petitioner’s case to the trial court for further proceedings.

Patrick L. Morris filed this timely personal restraint petition, alleging a violation of his right to a public trial when the trial court conducted par of voir dire in chambers. Further, he claims his appellate counsel was ineffective for failing to raise the violation on direct review. In In re Personal Restraint of Orange, 152 Wn.2d 795, 814, 100 P.3d 291 (2004), we resolved a similar claim on ineffective assistance of appellate counsel grounds. This case is analytically indistinguishable from Orange. We therefore reaffirm Orange and hold that where appellate counsel fails to raise a public trial right claim, where prejudice would have been presumed on direct review, a petitioner is entitled to relief on collateral review.

Weaver v. Massachusetts, 582 U.S. _, 137 S.Ct. _, 198 L.Ed.2d 420 (2017):

In the context of a public-trial violation during jury selection, where the error is neither preserved nor raised on direct review but is raised later via an ineffective assistance of counsel claim the defendant must demonstrate prejudice to secure a new trial.

State v. Irby, 187 Wn.App. 183, 347 P.3d 1103 (2015):

The presence of a biased juror in a criminal trial cannot be harmless. Such error requires a new trial without a showing of prejudice.


In re Detention of Kisternmadier, 163 Wn.2d 166, 178 P.3d 949 (2008):

Structural errors…are not subject to harmless error review, State v. Frost, 160 Wn.2d 765, 779, 161 P.3d 361 (2007) (citing Fulminite, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Internal structural errors are “subject to automatic reversal,” Neder, 527 U.S. at 8. In the criminal context, deprivation of “the presence of counsel at a critical stage” constitutes structural error requiring reversal. Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (quoting United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 557 (1984).

U.S. v. Davila, _ U.S._, 133 S.Ct. 2139, 16 L.Ed.2d 139 (2013):

Structural errors, which trigger automatic reversal because they undermine fairness of criminal proceedings as a whole, include denial or counsel of choice, denial of self-representation, denial or public trial, and failure to convey to jury that guilt muse be proved beyond a reasonable doubt.

State v. Foreman, 2018 Wash.App. Lexis 375 (2018):

In United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), complete denial of counsel includes the following scenarios: (1) Where a defendant is denied counsel at a critical stage of his trial; (2) Where counsel entirely fails to subject the prosecutions case to meaningful adversarial testing; (3) Where the circumstances are such that the likelihood that any lawyer, even a fully competent one, could provide effective assistance of counsel is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial; (4) When counsel labors under an actual conflict of interest. 

United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006):

For purposes of appellate review in criminal cases, the federal constitutional errors, sometimes called structural defects, that defy analysis by harmless-error standards include: (1) The denial of counsel, (2) The denial of the right of self-representation, (3) Denial of the right to public trial, and (4) The denial of the right to trial by jury by the giving of a defective reasonable doubt instruction. (No showing of prejudice required)

Kelly v. U.S., 29 P.3d 1107 (7th Cir. 1994) :

The implication of all of this is that questions about the court’s jurisdiction cannot be waived…and as a result parties can raise jurisdictional defects at any time… Because the jurisdiction cannot be procedurally defaulted in the first place, it is therefore a non sequitur to suggest that a procedural default cannot be overcome beause the defendant has not made an adequate showing of cause…because we are here dealing with a jurisdictional questions.

Montgomery v. Louisiana, 577 U.S. _, 126 S.Ct. 781, 192 L.Ed.2d 599 (2016):

If a state collateral proceeding is open to a claim controlled by federal law, the state court “has a duty to grant the relief that federal law requires.” Yates, 484 U.S. at 218. Where state collateral review proceedings permit prisoners to challenge the lawfulness of their confinement, States cannot refuse to give retroactive effect to a substantive constitutional right that determines the outcome of that challenge.

State v. Wise, 176 Wn.2d 1, 288 P.3d 1113 (Wash. 2012):

Structural error is a special category of constitutional error that “affects the framework within which the trial proceeds, rather than simply and error in the trial process itself.” Fulminante, 499 U.S. at 310, 111 S.Ct. 1246. Where there is structural error “a criminal trial cannot reliably serve its function s a vehicle for determination of guilt or innocence, and not criminal punishment may be regarded as fundamentally fair.” Structural error, including deprivation of the public trial right, is not subject to harmlessness analysis. Id. At 309-10; Easterling, 157 Wash.2d at 181, 137 P.3d 825. A defendant “should not be required to prove specific prejudice in order to obtain relief.”

State v. Paumier, 176 Wn.2d 29, 288 P.3d 1126 (Wash. 2012):

A structural error affects the framework within which the trial proceeds and renders a criminal trial an improper vehicle for determining guilt or innocence.

Davila v. Davis, 582 U.S._, 137 S.Ct. _, 198 L.Ed.2d 603 (2017) (“The Court declined to extend Martinez to allow a federal court to hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel when a prisoner’s state post conviction counsel provided ineffective assistance by failing to raise that claim”)

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